(Originally published February 9, 2023
Updated May 8, 2023)
On January 30, the Biden administration announced that the COVID-19 emergency orders would end on May 11, 2023. The announcement came on the eve of the three-year anniversary of the initial declaration of the Public Health Emergency (PHE), with the National Emergency (NE) declaration following later in March 2020. While both the PHE and the NE are ending, the conclusion of each emergency will have its own unique considerations. Subsequently, on Monday, April 10, 2023, President Biden signed legislation passed by Congress ending the COVID-19 National Emergency immediately.
The PHE was declared by the secretary of the Department of Health and Human Services and is renewable in 90-day increments. Declaring a PHE allows the secretary to use federal funding in response to the PHE, direct resources and supplies to state and local governments and perform other discretionary actions. Coverage requirements for COVID-19 prevention, testing and treatment, as established by federal statute and sub-regulatory guidance, are also tied to the end of the PHE. With the PHE set to expire, plan sponsors will soon face decisions regarding coverage of COVID-19 services.
The March 2020 Families First Coronavirus Response Act (FFCRA) required plans to cover COVID-19 testing and diagnosis without any participant cost-sharing, prior authorization or other requirements. The Coronavirus Aid, Relief and Economic Security Act (CARES Act) amended the FFCRA to include a broader range of diagnostic items that plans must include in that coverage. Readers may also recall when the Affordable Care Act (ACA) Frequently Asked Questions Part 51 clarified that this meant that plans must also cover and/or provide reimbursement for OTC testing kits. Plans may not limit coverage to tests purchased through in-network pharmacies but are able to limit reimbursement to no more than $12 per test. At the end of the PHE, these requirements will no longer be in effect and plans will need to make determinations on how to handle coverage and cost-sharing for diagnostic tests and over-the-counter (OTC) tests.
During the PHE, plans were also required to cover COVID-19 vaccines provided by both in-network and out-of-network providers. Due to the ACA’s requirements for coverage of preventive services, plans must continue to cover vaccines free of charge, but after the PHE ends plans can limit this coverage to in-network providers. However, this is subject to one important caveat; so long as the supply of federally purchased vaccines lasts, vaccines will remain free to all without any cost-sharing. Once the federal supply runs out, the commercialization of COVID-19 vaccines will shift the burdens of cost and access to the private insurance market. As for COVID-19 treatment considerations, most participants already face cost-sharing obligations for treatment. Though most plans voluntarily waived cost-sharing during the early days of the pandemic, these initiatives were widely phased out by the end of 2021.1
The president’s NE declaration in March 2020 allowed the secretary of HHS to temporarily waive or modify certain requirements related to Medicare, Medicaid and Children’s Health Insurance Program, and extend certain plan-related time frames such as COBRA elections and premium deadlines. During the NE certain COBRA deadlines continue to toll for one year (or, if earlier, 60 days from the announced end of the NE). Now that the NE has expired, some elections will come due as if the 60-day election or payment window has just begun. Plans should verify that any COBRA-eligible individuals granted extended deadlines in light of the relief are properly documented.
Further analysis and guidance will be forthcoming as regulators clarify requirements and begin to wind down pandemic-related policies and programs. Employers should work with their vendors to consider plan design options and ensure timely modifications to their COVID-19 coverage procedures.
Some considerations for plans as we near the end of the emergency orders:
- Will plans cover tests without cost-sharing or prior authorization?
- Will plans continue to impose $12 reimbursement limit on out-of-network tests?
- Will plans ever reimburse for out-of-network tests?
- Will plans cover OTC tests?
- Will plans cover vaccines from out-of-network providers?
As our pharmacy benefit management suppliers communicate options and deadlines for decision making, the team at Employers Health will work to keep you informed about how your plan and participants may be affected.
The content of this article is intended to convey general information only and not to provide legal advice or opinions. This content should not be construed as, and should not be relied upon for, legal advice. Nothing on this website is intended or should be construed to create an attorney-client relationship. Parties should seek independent counsel for advice with respect to any particular legal issue.
